This week's Legal Currents column, which is published in The Daily Record, is entitled "The lawsuit that shoulda, coulda been" The article is set forth in full below, and a pdf of the article can be found here.

Nearly two weeks ago, in Ortega v. City
of New York, 2007 N.Y. Slip Op. 07741, the New York
State Court of Appeals considered the unresolved
issue of whether New York State recognizes the tort of third party
negligent spoliation of evidence.

At issue in Ortega was whether a passenger who was
severely injured as a result of a vehicular fire could maintain
a spoliation claim against the City of New York for failure to
prevent the destruction of the damaged vehicle.

The city was not involved in the original incident, but the
plaintiff alleged the city nevertheless was liable for the full
amount of damages she would have recovered in a civil
action against the underlying tortfeasor because an agent of
the city, for unknown reasons, destroyed the vehicle in violation
of a court order directing its preservation.

In reaching its determination, the court weighed judicial
and social policy concerns, including the public policy issue
of the potential and significant liability that claims for third party
spoliation could impose on municipalities.

The court also examined traditional remedies available to
spoliation victims in New York, such as discovery sanctions
and civil contempt sanctions. The plaintiff in Ortega asserted
such sanctions were insufficient since the negligent destruction
of the vehicle posed fatal obstacles to determining the
fire’s cause and prosecuting claims against the likely tortfeasors.

After careful consideration of the competing interests, the
court concluded existing New York remedies
are sufficient, and declined to follow the minority
of jurisdictions that permit tort of thirdparty
negligent spoliation: “In New York, while
the desire to provide an avenue to redress
wrongs is certainly an important consideration
underlying our tort jurisprudence, the recognition
that there has been an interference with an
interest worthy of protection has been the
beginning, not the end, of our analysis. ‘While
it may seem that there should be a remedy for
every wrong, this is an ideal limited perforce by
the realities of this world.’ … As a general rule,
New York courts have been reluctant to
embrace claims that rely on hypothetical theories or speculative
assumptions about the nature of the harm incurred or
the extent of plaintiff’s damages. … For all of these reasons,
we join the majority of jurisdictions to consider the issue …
and decline to recognize spoliation of evidence as an independent
tort claim.” (Citations omitted.)

In other words, an innocent, injured person is out of luck
if a third party negligently performs his or her job.
Arguably, it is of little consolation to the potential plaintiff
that funds may be recovered from a negligent third party to
pay for expert expenses and additional investigation as to
whether a claim is feasible.

Furthermore, it is unlikely any plaintiff’s attorney would
be willing to expend the time and resources needed to
investigate a claim where the end result of the fishing expedition
doubtlessly would be an expert opining there is no
way to determine whether negligence caused the accident in
question, where the object alleged to have caused injury
cannot be examined.

It is, most assuredly, an unfortunate decision from the
plaintiff’s perspective.

That being stated, given the speculative and hypothetical
nature of the imbedded claims inherent in a third-party spoliation claim — in which the plaintiff alleges that, if a jury
was convened in the matter, it might reach a different conclusion
if destroyed evidence was preserved — it is difficult
to imagine another result.

Central to negligence claims are allegations of shoulda,
coulda, woulda. But, assertions of shoulda, coulda, woulda,
once removed from the negligence claim itself, lead to hypothetical
findings too equivocal to prove.

While this result may seem tinged with injustice it is, lamentably,
the only logical conclusion.

Also, congratulationsare in order for Stephen Bergstein of Wait a Second! First he broke the story regarding the "missing" 2d Circuit torture opinion, was credited for the same across the blogosphere, and then he was quoted in a Washington Post article regarding the entire fiasco. Blogging at its best!

I apologize for the gap in "Define That Term" posts. I'm not sure what happened, but somehow I simply forgot.

In any event, the most recent term was encumbrance, which is defined as:

(incumbrance)n. a general term for any claim or lien on a parcel of real property. These include: mortgages, deeds of trust, recorded abstracts of judgment, unpaid real property taxes, tax liens, mechanic's liens, easements and water or timber rights. While the owner has title, any encumbrance is usually on record (with the County Recorder or Recorder of Deeds) and must be paid for at some point.

The 4-3 decision is significant because the case involving John Taylor is the last death penalty case in New York's court system and it will now take an act of the State Legislature to restore capital punishment … unlikely given opposition in the Democratic-led Assembly.

The case was unusual. The court three years ago ruled that the sentencing provisions of the state's 1995 death penalty law were unconstitutional because they could sway a jury to choose a death sentence. The judge in the Taylor case then changed how the jury was instructed to address the Court of Appeals' concerns in that earlier death case.

But a majority of the Court of Appeals this morning said that the "death penalty sentencing statute is unconstitutional on its face and it is not within our power to save the statute."

The specific jury instruction at issue was as follows:

Now, any decision by you to impose a sentence, whether of death or of life imprisonment without parole, would have to be unanimous. In other words, each juror would have to agree to it. I am required to tell you that the law provides that in the event the jury fails to reach unanimous agreement with respect to the sentence, then I must sentence the defendant myself. And the law provides that if I sentence the defendant, I must sentence him to life imprisonment, but I must also fix a point at which the defendant will become eligible for parole. Under the law I must fix that point between twenty and twenty-five years for each count. In other words, on each count I would sentence the defendant to life imprisonment and order that he not become eligible for parole until he has served the minimum term that I fix, a term of between twenty and twenty-five years for each count. I think it is fair to tell you, however, that the six [count]s of first degree murder, and the two counts of first degree attempted murder on which you have convicted the defendant, are precisely the type of crimes that almost always induce a judge to give the maximum sentence permissible. In this case I would have the authority to sentence the defendant, not only to the maximum on each count, but also to make those sentences run consecutively. So, the maximum sentence I could give and would almost certainly impose in this case, would be a sentence of 175 years to life, which means that the defendant would become eligible for parole, but only after he had served 175 years in jail.

In the decision, the Court explained the rationale behind its holding:

LaValle made perfectly clear that the death penalty sentencing statute crafted by the Legislature was unconstitutional. That judgment stemmed from LaValle's core holdings that our Due Process Clause requires an anticipatory deadlock instruction be given and that the existing provision was unconstitutionally coercive (see id. 3 NY3d at 120, 130). Since we could not craft a new instruction, we were constrained to say: "under the present statute, the death penalty may not be imposed" (id., 3 NY3d at 131). Defendant, here, was thus sentenced to death under a facially unconstitutional statute.

The competition for Best NY-based law blogger was fierce, with 478 votes being cast.

The clear winner is Dustin of Quizlaw! He's won his choice of any single item sold by The Billable Hour (luxury watch line and sets excluded), a company that offers clever gifts and greeting cards for legal professionals.

53 votes were cast for Best NY legal blog with New York Civil Law coming in first place. Matt Lerner has won a signed copy of attorney Sairo Rao's witty novel, Chambermaid, about a young attorney's eventful year as a clerk for a Federal Court Judge.

If there’s an intellectual highway, there’s also an
intellectual subway.
— Stanley Crouch

Robert L. Birmingham, a professor for the
University of Connecticut School of Law,
recently caused quite a stir when he
showed a video clip from a film called “Really, Really Pimpin’
in Da South” during his “Remedies” course. The film was
made by Atlanta-area pimps and explained the rules of conduct
for pimps and their prostitutes.

The class was discussing a 2004 11th Circuit U.S. Court of
Appeals case, U.S. v. Charles Floyd Pipkins, a.k.a. Sir Charles,
and Andrew Moore, Jr., a.k.a. Batman, no. 02-14306. The purported
reason for discussing this case was in the context of
determining whether the prostitutes were held in involuntary
servitude.

Much has been written about the professor’s subsequent
suspension and the ostensible reason for the uproar-that
Professor Birmingham accidentally and belatedly stopped
the “relevant” portion of the video clip, an interview with
the defendant Pipkins, on a still image of a woman in a suggestive
pose, wearing a g-string.

That this case was chosen for discussion in the first
instance is somewhat surprising. The decision arises from a
265-count indictment of 15 pimps involving allegations of
violating the Racketeering Influenced Corrupt Organizations
Act, among other criminal statutes. The crime of involuntary
servitude was discussed on less than three pages of
the entire 43-page opinion.

The rationale that led to the inclusion and extended discussion
of this particular case and the classroom viewing of
a video made by pimps for pimps was questionable, at best.
The video malfunction served only to highlight the inexpediency
of the inclusion of this material in a law school classroom.

However, the allegations of audio-visual
ineptitude become all the more suspect when
one learns that later that same day, at the
request of his students, Professor Birmingham
paused the very same video clip at the very
same place-in a class on the Nuremberg Trials.
It’s difficult to imagine the relevance of the
code of conduct for pimps in the early 21st century
to a seminar focused on the war crime trials
held in the aftermath of World War II.

That this particular professor chose to examine
this particular material in two different law
school courses is not particularly surprising
when one reviews his body of work. For example,
in an article published in the Connecticut Law review in
the Summer of 2000 entitled “Folk Psychology and Legal
Understanding,” Professor Birmingham devotes nearly one
third of the article (excluding footnotes) to the discussion of
whether consent can be inferred if one becomes pregnant as
a result of rape.

In that same article, when discussing an antiquated law
that allowed a rapist to escape punishment if the victim and
the rapist marry, he quipped: “One imagines that such marriages
were as happy as most.” Earlier in the article, he
made the curious decision to use the word “promiscuously”
in lieu of the less charged and more commonly used word
“indiscriminately.”

I encountered a similar professor in law school. The vast
majority of hypothetical examples offered by the male professor
involved men conducting complex business transactions.
On the rare occasion that a woman entered the picture,
she was either a prostitute or pregnant.

The transparent message sent by this professor to the captive
classroom was that women were worthy of mention
only when their “unique” biology served to add some sort
of warped interest to a hypothetical factual scenario. Never
mind the fact that women constituted half of the population
of both the world and the very classroom in which the existence.

Based upon my experience, I would hazard to guess that
the video malfunction that resulted in Professor Birmingham’s
suspension was not an isolated event, but rather, the
straw that broke the camel’s back.

Perhaps this incident will serve as a wake up call to law
professors across the country who regularly engage in questionable
teaching tactics — take the intellectual high road
while in class and confine your travels of the intellectual
low road to drunken discussions with friends over a few
beers. Your students will thank you.

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